The court held that under the provisions of s 13 of the Refugees Act, no proceedings would be instituted against any person or any member of his family in respect of his unlawful presence within Kenya. The applicants being refugees in Kenya were not liable to be prosecuted in respect of his unlawful presence within Kenya. That being so, the prosecution of the applicants under s 25(a) was unlawful.
Refugees; eligibility for refugee protection; unlawful presence; revision; UNHCR
The applicants were charged and convicted of the offence of being unlawfully present in Kenya contrary to s 25(a) of the Refugees Act 2006 (No.13 of 2006). Consequently, they applied for Revision under ss 362 and 364 of the Criminal Procedure Code.
The application for revision was successful.
The court held that in view of the powers vested in the court by s 364(1) and 354(3)(i) of the Criminal Procedure Code, (Cap. 75 Laws of Kenya), the conviction of the applicants was unlawful and issued an order directing that the applicants to be handed over to the U.N.H.C.R. for repatriation to the U.N.C.H.R. Refugee Camp at Kakuma.